After separating from his wife in late 2014, comedian Chris Rock was laughing
all the way home from the Courthouse after his
divorce was finally granted. However, the Court record has been sealed and speculation remains regarding
what the parties may have agreed to with regards to Chris’s support
obligations, and more specifically, child support. There are two biological
children of the marriage, ages 12 and 14. However,
there is also a third child who is 8 years old, and a native of South Africa, who began living with
the family when she was 6 months old. Sources claim the child was never
formally adopted. Though Chris maintains that he is not the child’s
father, he may still have an obligation to provide child support for her.
In Ontario, a reality of the demographics of modern families means that
an increasing number of people are caring for children whom are not biologically
their own. The term
in loco parentis is a Latin term meaning “standing in the place of the parent”,
which encompasses family structures where there is no biological relation
between parent and child. Under the
Divorce Act, a child of the marriage includes children for whom a parent has been
in loco parentis.
To test to determine if a parent is
in loco parentis is an assessment of many relevant factors as laid out in the leading Supreme
Court of Canada case
Chartier v. Chartier [1999] 1 SCR 242. In
Chartier, the Court determined that whether a parent/child relationship exists must
be assessed from an objective perspective. The determination is made by
an assessment of various factors including but not limited to:
- intentions of the parties, both expressed and implied
- whether the person assumed the rights and responsibilities of a parent
- how the relationship between the person and child was represented to others
- whether the person financially supported the child
- the child’s participation in the extended family of the person in the
same way a biological child would, and; - nature of the child’s relationship with their biological parent.
The presence or absence of any one or more of these factors is not in and
of itself determinative of whether the parent/child relationship exists.
Following
Chartier, courts have been flexible with the application of the test and the specific
factors within it.
If a person is found to have a support obligation as an
in loco parentis parent, they also have rights with respect to the child, specifically the
right to apply for custody or access to the child. However, as always
with family law, any person’s custody or access rights with respect
to any child will be assessed in accordance with the
best interests of the child.